Edwin Eduardo Campos MEJIA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
No. 15-70155
United States Court of Appeals, Ninth Circuit.
August 29, 2017
Argued and Submitted June 9, 2017 Pasadena, California
867 F.3d 1118
Shafer‘s primary argument on appeal is that Deputy Padilla violated clearly established law, because he had no basis for using any force whatsoever. We disagree. The jury found that Deputy Padilla had probable cause to arrest Shafer for violations of
Finally, Shafer argues that it is Deputy Padilla‘s burden to demonstrate that he did not violate Shafer‘s clearly established constitutional right. Again, we disagree. It is the plaintiff who “bears the burden of showing that the rights allegedly violated were ‘clearly established.‘” See, e.g., LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).
Because Shafer fails to identify sufficiently specific constitutional precedents to alert Deputy Padilla that his particular conduct was unlawful, Deputy Padilla is entitled to qualified immunity.
Since we reverse and vacate the jury verdict and damages awards, the parties shall bear their own costs associated with this appeal.
REVERSED, JURY VERDICT AND DAMAGES AWARDS VACATED.
Matthew J. Smock (argued) and Amy J. Laurendeau, O‘Melveny & Myers LLP, Newport Beach, California, for Petitioner.
OPINION
DAVILA, District Judge:
Petitioner Edwin Eduardo Campos Mejia seeks review of the Board of Immigration Appeals’ (“BIA“) dismissal of his appeal from the immigration judge‘s (“IJ“) denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“). Petitioner showed signs of mental incompetency during proceedings before the IJ. Petitioner argues that, under governing BIA precedent, these signs triggered the IJ‘s duty to determine whether procedural safeguards were needed, but that the IJ failed to do so. We agree. Accordingly, we grant the petition and remand.
BACKGROUND
Petitioner, a native of Guatemala, entered the United States without inspection at some point between 1986 and 1991. The Department of Homeland Security initiated removal proceedings in 2004 in a Notice to Appear. Petitioner admitted the factual allegations in the Notice, and the IJ sustained the charge of removability. Petitioner‘s case was administratively closed for most of the next six years while he served prison sentences for driving under the influence. The Department of Homeland Security moved to recalendar the case in December 2010.
Petitioner first sought cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, but he withdrew his application because his criminal record disqualified him from relief. In October 2011, he filed a Form I-589 Application for Asylum and Withholding of Removal, seeking asylum under
Petitioner, assisted by counsel, presented evidence at three removal hearings. At the first, on June 25, 2012, Petitioner was examined by his counsel and by the IJ. He testified about the violence that he had experienced as a child, including witnessing the deaths of family members and others. During one conflict, he suffered a severe head injury and was knocked unconscious. He suffers from mental illness that stems from his childhood trauma, and since 2003 he has been treated with medication for major depression with psychotic features. He also has a history of alcohol abuse which, according to his medical records, is likely related to his mental illness. The IJ determined that testimony from Petitioner‘s parents would be helpful, and he granted an eight-month continuance so that Petitioner could arrange for their appearance.
At the second hearing, on February 14, 2013, the government cross-examined Petitioner. He testified about his criminal convictions, his prison sentences, his work and family history, his completion of alcohol abuse programs, his entry into the United States, and his parents’ return to Guatemala. He further testified that he was not taking his medication and that he was “not functioning quite well” because “[t]here‘s an ongoing fight in, in between
At the final hearing, on June 20, 2013, Petitioner‘s parents testified. His mother testified about his mental health issues, his medication, and his family situation. His father testified about Petitioner‘s medical condition and about a fight between the father and a neighbor during a recent visit to Guatemala. Petitioner did not testify.
On September 9, 2013, the IJ issued a written decision denying Petitioner‘s application and ordering his removal. The IJ denied asylum and withholding of removal because he determined that Petitioner‘s 2008 and 2010 DUI convictions were for “particularly serious crimes.” See
Petitioner appealed to the BIA. On December 19, 2014, the BIA dismissed the appeal. It affirmed the IJ‘s findings that Petitioner‘s DUI convictions were for particularly serious crimes and that Petitioner had not shown that he would likely be tortured upon return to Guatemala. In addition, although “neither party... raised the issue of mental competence,” the BIA noted that Petitioner “was not taking his medication at the time of his hearing” and suffers from serious psychological problems. After a brief discussion, the BIA held that “we do not find remand warranted for further consideration of the respondent‘s competency.”
Petitioner timely petitioned for review.
STANDARD OF REVIEW
We review for abuse of discretion whether the BIA clearly departs from its own standards. Alphonsus v. Holder, 705 F.3d 1031, 1044 (9th Cir. 2013).
DISCUSSION
Petitioner contends that the IJ erred by failing to determine whether procedural safeguards were required after Petitioner showed signs of mental incompetency. We agree.
Under governing BIA precedent, if an applicant shows “indicia of incompetency,” the IJ has an independent duty to determine whether the applicant is competent. In re M-A-M-, 25 I. & N. Dec. 474, 480 (B.I.A. 2011). Indicia can include “the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction,” as well as “evidence of mental illness.” Id. at 479. After determining whether the applicant is competent, the IJ must “articulate that determination and his or her reasoning.” Id. at 481. If the IJ determines that the applicant is incompetent, the IJ must employ procedural safeguards and “articulate his or her reasoning” for doing so. Id. at 483.
Here, there were clear indicia of Petitioner‘s incompetency. He has a history of serious mental illness, including hallucinations, bipolar disorder, and major depression with psychotic features. During hearings before the IJ, Petitioner testified that he was not taking his medications and
On review, the BIA noted that Petitioner suffers from serious mental illness and “was feeling unwell without his medication” during the proceedings before the IJ. Nonetheless, the BIA concluded that remand was not warranted because certain procedural safeguards were in place—for instance, Petitioner was represented by counsel, he “presented testimony in support of his claims,” and he “provided his parents as witnesses.” But the BIA did not address the IJ‘s failure to articulate his assessment of Petitioner‘s competence and why these procedural safeguards were adequate.
The BIA abused its discretion by failing to explain why it allowed the IJ to disregard In re M-A-M-‘s rigorous procedural requirements. See Alphonsus, 705 F.3d at 1044 (“It is a well-settled principle of administrative law that an agency abuses its discretion if it clearly departs from its own standards.” (internal quotation marks omitted)). We therefore remand to the BIA with instructions to remand to the IJ for a new hearing consistent with In re M-A-M-.
Petition GRANTED and REMANDED. The parties shall bear their own costs on judicial review.